The Centre sticks to its stand that the Supreme Court should not interfere with a core executive function. india Updated: Oct 04, 2017 07:09 ISTBhadra Sinha
Hindustan Times, New Delhi
A Rohingya Muslim woman stands by the entrance to her shanty at a camp for refugees in New Delhi on September 18, 2017.(AP File Photo)

“To say this petition is not maintainable, I believe, is not correct,” said an apex court bench headed by Chief Justice of India (CJI) Dipak Misra. “I, for one, believe from my past experience of 40 years that when a petition like this comes to us, the court should be slow to abdicate its jurisdiction.”

The judge was responding to additional solicitor general Tushar Mehta’s argument that the Centre’s submission with regard to the case was justified.

Mehta contended that the Centre had arrived at its decision (to deport Rohingya Muslims) on the basis of constitutional principles.

“Various parameters are considered before the government arrives at an executive decision,” he said. “It could be diplomatic considerations; whether a country can sustain refugees; what would be the repercussions of providing shelter among the local population… therefore, executive decisions should be left to the government unless any motive is attributed.”

Earlier, senior advocate Fali S Nariman had read out a 2011 directive by the UPA government that assured protection to refugees. He insisted that the present government’s decision to deport the Rohingyas went against consistent decisions taken in the past in tune with international obligations.

CJI Misra asked Mehta to take Nariman’s submissions into consideration. “They have raised concerns about women and children. They also feel that India should live up to its commitments and take steps to protect this large community. Just think about it,” he said, adjourning the case till October 13.

The Centre, meanwhile, filed a rejoinder affidavit in the case. Sticking to its stand that the apex court should not interfere with a core executive function, the document stated that decisions on illegal immigrants are taken on a case-to-case basis.

“There cannot be any comparison or claim of discrimination based on an earlier decision taken with respect to one set of illegal immigrants vis-à- vis another set of illegal immigrants,” it added.

The document also stated that as New Delhi is not a signatory to the United Nations Convention of 1951 or the Protocol of 1967, they are not binding on the country. Hence, the Centre has the right to deport illegal immigrants in accordance with Indian laws, thereby protecting the fundamental rights of its own citizens in the interests of national security.http://www.hindustantimes.com/india...rt-refugees/story-f1JVuCVlZAHyo1S63ml85H.html

The law is clear: India can’t deport RohingyasOn refugees, New Delhi has always trusted UNHCR’s vetting and accreditation process. Why is New Delhi undermining it now?opinion Updated: Sep 27, 2017 14:17 IST
Colin Gonsalves
A Rohingya Muslim boy, who crossed over from Myanmar into Bangladesh, pleads with aid workers to give him a bag of rice near Balukhali refugee camp, Bangladesh, September 21(AP)

India has a fair reputation on the refugee issue having taken in Sri Lankans, Tamils, Afghans, Tibetans and Myanmaris. This is why the reaction of the Government of India on the Rohingya issue doesn’t quite make sense. Apart from being wrong on law, it creates an impossible situation and tarnishes India’s image abroad.

The Supreme Court in the case of granting citizenship to the Chakma’s confirmed the proposition that since Article 21 – the Right to Life – of the Constitution covers all “persons” and not just citizens, the State is duty bound to protect the lives of citizens and foreigners alike. This is how the principle of non-refoulement or non-return -- which bars a country from deporting a refugee to any country where she might be raped, murdered or tortured -- has been interpreted as inhering in Article 21.

However, the security issue remains to be discussed with some calmness. The Centre’s concerns ought not to be cursorily ignored. I represent 7,000 refugees in Jammu and visited some of the 23 refugee settlements in the city. Not a single refugee in Jammu has been charged with terrorism. On the possibility of radicalisation of the Rohingyas and of terrorist organisations fishing in troubled waters, one need only to rely on the statement of the chief minister of the state, asserting that there are no signs of radicalisation of the Rohingya population. How a traumatised population responds and develops depends on how it is treated. Treat them with dignity and the little Rohingya girl playing in the mud in her slum in Delhi could grow up to be the prime minister of India. Give them a brutal demolition, and perhaps some may join the ranks of militants. Their future and ideological orientation lies in our hands. Take the case of the Sri Lankan refugees who fled to India in large numbers, all of them with LTTE tattooed on their hearts. The Indian government did not take the stand that the possibility of radicalisation disentitled them from being treated humanely in Indian refugee camps. The same approach must be taken with the Rohingyas.

The government says that since the Rohingyas are illegal migrants they can be deported. The initial part is right, the conclusion is wrong. Migrants are divided into economic migrants and refugees. Both enter the country without valid visas or passports. Economic migrants searching for jobs cannot demand that they be allowed to remain under existing Indian jurisprudence. They may be deported. Refugees, however, are distinguished from others in that they flee persecution in their country of origin. Once they enter India, they are protected by the Constitution and cannot be returned. It is odd that the officials have not been shown the guidelines of the home ministry regarding refugees where it is said that persons fleeing persecution will not be treated as illegal immigrants and will be granted long-term visas. Apparently, 5,000 Rohingyas have been granted such visas and the remaining are in queue.

On the United Nations High Commission for Refugees (UNHCR) front, an unnecessary confrontation is brewing. Under a long-standing arrangement and understanding with the UN, the agency has been permitted and encouraged to do thorough refugee verification and determination of refugees. This information is promptly shared with the home ministry and intelligence agencies. This is an important function and one which enables the government to know exactly where the refugees are and their details.

One could understand the chaotic situation that would exist if refugees were to come into India and go underground rather than flock to UNHCR for registration. The implications for national security are clear. The UNHCR plays a dual role of protecting refugees by giving them refugee cards and in meeting India’s security concerns. This well-established system has operated for decades, based on mutual respect and self-interest. Recently, however, there have been very rough statements made by counsel appearing for the government of India, obviously briefed by short-sighted and ill-informed officials to the effect that the government does not recognise the UNHCR and the refugee cards issued by them after status determination. The government of India can certainly take over refugee determination but it must surely deal with the UN with courtesy and recognise the enormous work done by the UNHCR all to India’s benefit and security concerns.

Colin Gonsalves is a senior Supreme Court advocate and founder, Human Rights Law Network. He is a recipient of the 2017 Right Livelihood award

There’s little possibility of the Centre getting SC sanction to deport RohingyasWhy then the very high profile public, media and litigious campaign? Not because it has any possibility of success, but because it feeds perfectly into the wider Hindutva discourse and its polarising politics. This is no different from the periodic and high-decibel broadsides launched against illegal Bangladeshi migrants;analysis Updated: Oct 02, 2017 13:09 IST
Ajai Sahni
People protest against the genocide of Rohingya Muslims in Myanmar, New Delhi, September 21, 2017(Arun Sharma/HT PHOTO)

An estimated 40,000 Rohingya refugees from the Rakhine State of Myanmar, who have entered India illegally, have no right to be here. Under normal circumstances, their deportation could attract no significant legal barriers, other than the inherent sluggishness of judicial processes, the corruption and inadequacies of the enforcement apparatus, and the anonymity and possibility of merging into India’s vast population. Significantly, a majority of these refugees have been in this country for some five years – more than three of these under the present regime at the Centre, and their presence on Indian soil and, somewhat more disturbingly in Jammu, has been no secret.

Abruptly, at a time when they are being subjected to what has been described as ‘text book genocide’ in Myanmar, the Centre has decided that it is necessary to expel these illegal aliens – precisely when it is nigh impossible to do so under the natural protection offered both by international convention and national law. It is, consequently, important to examine the context and implicit purpose of this move.

The Government of India (GoI) has claimed in its submission to the Supreme Court on September 18 that the Rohingya refugees constitute a “serious national security threat/concern”, and that there deportation was a “policy decision in larger interest of the country” in which the court “may decline its interference”. The GoI claims that “many among” the Rohingya refugees are radicalised and that there was a “serious possibility of violence erupting against the Buddhists”. The Rohingyas – it is not clear whether the larger community or the specific group present in India – have links with Pakistan’s Inter-Services Intelligence and extremist groups. Allegations of Rohingyas with ‘militant’ background being “very active” in Jammu, Delhi, Hyderabad and Mewat; of engaging in hawala transactions; of engaging in human trafficking; and of acquiring fake/fabricated Indian identity documents (the last of these is, of course, entirely credible) have also been submitted to the court.

Government agencies, of course, have information that is not available to the public. Events, however, have demonstrated repeatedly that these agencies are also willing to bend the truth from time to time in their efforts to accommodate parties in power. Among the most significant of recent cases in point are the National Investigation Agency’s (NIA’s) somersaults in the ‘Hindutva terrorism’ cases. Evaluating the evidence in these cases is, of course, beyond our scope and competence, but it is clear that the NIA has either fabricated evidence due to political pressure under the last regime; or it has suppressed or destroyed evidence due to pressure under the present regime. The one certainty that is unambiguously demonstrated is that the NIA has been lying. This is not a unique or isolated aberration among investigative agencies.

It is necessary, consequently, to assess the government’s claims in terms of what is publicly known, and what has been made known to the court.

There is no evidence, so far, to suggest that any Rohingya group or individual has carried out a terrorist attack in India. Nevertheless, the Institute for Conflict Management database has tracked linkages between Rohingya radicals and Pakistan-backed Islamist terrorist formations in Bangladesh since 1999. Some suspicions were raised after the July 7, 2013, serial explosions at the Maha Bodhi Temple at Gaya in Bihar in which two monks were injured, but NIA investigators then established that the attack had been engineered by extremists of the Students Islamic Movement of India (SIMI) to “take revenge against Buddhist people” in the aftermath of anti-Rohingya rioting in Myanmar in 2012.

At this stage, there was some evidence that Pakistani terrorist formations, backed by the ISI, were trying to recruit among the Rohingya in Myanmar for terrorist operations in that country, as well as in Bangladesh and India. These claims have been supported, not only by India’s Research and Analysis Wing, but by Bangladeshi, US and Singapore intelligence agencies as well. Five years have, since, passed, and these efforts – including the Lashkar-e-Taiba’s attempts to establish the Difa-e-Muslaman Arakan – have proven evident failures. No demonstrable terrorist activity by Rohingyas in India has emerged as a consequence.

It is useful to recall that the process for the proscription of a clearly identified terrorist formation in India requires a quasi-judicial evaluation of evidence of current activity; there is no legal process available for the proscription, or even branding, of an entire community as ‘terrorist’, ‘criminal’, or a ‘security risk’.

Further, and crucially, while the GoI is correct in its contention that India is not a signatory of the international Convention on the Status of Refugees (1951), it is wrong in the claim that it is, consequently, not bound to the principal of non-refoulement (the prohibition of returning refugees to a country where they are likely to face a threat to their lives and liberty, except in cases of those who have committed grave offences in the host country).

India is signatory to a number of other international conventions – including the Convention against Torture, which have the same effect. More importantly, Indian Courts have repeatedly reaffirmed the principal of non-refoulement in a number of cases on the basis of Article 21 and other Constitutional provisions, and are unlikely to throw established jurisprudence abruptly into the waste paper basket. There is, consequently, little possibility of the GoI securing legal sanction for its current efforts to deport the Rohingya refugees. The legal luminaries who are representing the GoI in the Supreme Court cannot be unaware of these realities.

Why then the very high profile public, media and litigious campaign? Not because it has any possibility of success, but because it feeds perfectly into the wider Hindutva discourse and its polarising politics. This is no different from the periodic and high-decibel broadsides launched against illegal Bangladeshi migrants; despite over nine years of BJP-led government (six under Atal Behari Vajpayee and well over three under the present regime), nothing of significance has been done on this issue. But its electoral yield has been significant. The Rohingya refugees are now part of the human detritus that can be cheaply sacrificed to this strategy.

there is a big difference between UNHCR registered refugees with valid travel documents and people coming in as infiltrators without any documents. GOI can't deport refugees registered with UNHCR but SC has no say regarding infiltrators.

there is a big difference between UNHCR registered refugees with valid travel documents and people coming in as infiltrators without any documents. GOI can't deport refugees registered with UNHCR but SC has no say regarding infiltrators.

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Spot on. Even Myanmar/Bdesh will take back 'registered' refugees. The problem we face is to deport these infiltrators to where?

‘Even If We Are 72, We Can Kill Lakhs of Non-Muslims,’ Says Bengal Cleric Over Deportation Of Rohingyas
Monday, October 09, 2017 By: Defence News

India is becoming a disturbing party to the growing regional plight of the Rohingya, the Muslim minority being driven out of Myanmar by militant Buddhists with the help of the government.

“As per available estimates there are around 40,000 Rohingya living illegally in the country,” India’s junior home minister Kiren Rajaji told Parliament on August 9. “The government has issued detailed instructions for deportation of illegal foreign nationals including Rohingya.” In its affidavit filed before the Supreme Court last month, the Centre claimed that Rohingya refugees posed a “serious national security threat” and that their deportation was in the “larger interest” of the country. It also asked the court to “decline its interference” in the matter.

In the midst of the on-going battle between the Centre's will to throw Rohingya's out and the pending decision by the Supreme Court of India, an Islamic Cleric has issued an open threat to the Modi Govt. in New Delhi to dare throw the Rohingya out of India.

He has threatened to march all the way to New Delhi with millions of Muslims and over throw the Hindu Govt.

why should i pay tax to a govt. which takes in potential terrorists who killed 100 Hindus abducted,raped in Myanmar. If present govt. cant deport these rohingyas, BJP wont get my vote in 2019.

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If the present Government doesn't deport Rohingyas, it will be because they can't due to the interference of the SC and various legal technicalities. But in a country where every other political alternative is some sort of Far Leftist-Islamist combine, there is simply no question of voting for anyone other than BJP.

‘Even If We Are 72, We Can Kill Lakhs of Non-Muslims,’ Says Bengal Cleric Over Deportation Of Rohingyas
Monday, October 09, 2017 By: Defence News

India is becoming a disturbing party to the growing regional plight of the Rohingya, the Muslim minority being driven out of Myanmar by militant Buddhists with the help of the government.

“As per available estimates there are around 40,000 Rohingya living illegally in the country,” India’s junior home minister Kiren Rajaji told Parliament on August 9. “The government has issued detailed instructions for deportation of illegal foreign nationals including Rohingya.” In its affidavit filed before the Supreme Court last month, the Centre claimed that Rohingya refugees posed a “serious national security threat” and that their deportation was in the “larger interest” of the country. It also asked the court to “decline its interference” in the matter.

In the midst of the on-going battle between the Centre's will to throw Rohingya's out and the pending decision by the Supreme Court of India, an Islamic Cleric has issued an open threat to the Modi Govt. in New Delhi to dare throw the Rohingya out of India.

He has threatened to march all the way to New Delhi with millions of Muslims and over throw the Hindu Govt.

Bengal, Jammu Kashmir, and Kerala need either a sole BJP Government/Central intervention to clean up this Islamist trash, or a massive influx of Hindus from across the rest of India and 2002 on steroids. Otherwise the signs are clear, in another 50 years we'll be staring at some form of Partition all over again.

Yeah why not govt just resign and let SC rule the country, they are so proficient, they can run everything from BCCI to Govt and can also tell us when to breath and when not.

More this govt. bend the more SC will encroach the democracy, they did it with Judicial reforms, collegium system, President rule in UK and Arunachal, on BCCI, on Diwali, why the **** we just don't rent this country to "my lords" ultimate wish to rule with zero accountability?

Yeah why not govt just resign and let SC rule the country, they are so proficient, they can run everything from BCCI to Govt and can also tell us when to breath and when not.

More this govt. bend the more SC will encroach the democracy, they did it with Judicial reforms, collegium system, President rule in UK and Arunachal, on BCCI, on Diwali, why the **** we just don't rent this country to "my lords" ultimate wish to rule with zero accountability?

Parliament should teach SC an lesson on not pandering to the executive. SC nowadays is thinking itself as super extraordinary and framing laws and even asking to start a new fund. That's not ur foocking job. Ur job is to interpret the law.... Unfortunately in India SC judgements are used as political brownie points. Even when BJP was in opposition it did try to score points using SC judgement which in fact it should have united all MP's against SC judgements intervening Parliaments power.

why should i pay tax to a govt. which takes in potential terrorists who killed 100 Hindus abducted,raped in Myanmar. If present govt. cant deport these rohingyas, BJP wont get my vote in 2019.

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Deport to where ?? Myanmar refusing to take them back, Bangladesh refuses to take them. They got one place Pakistan, and a Jannat named Saudi Arabia -- We should give donation for their one way trip to Karachi or Saudi. Bye Bye and fare well in your dream land.

‘Even If We Are 72, We Can Kill Lakhs of Non-Muslims,’ Says Bengal Cleric Over Deportation Of Rohingyas
Monday, October 09, 2017 By: Defence News

India is becoming a disturbing party to the growing regional plight of the Rohingya, the Muslim minority being driven out of Myanmar by militant Buddhists with the help of the government.

“As per available estimates there are around 40,000 Rohingya living illegally in the country,” India’s junior home minister Kiren Rajaji told Parliament on August 9. “The government has issued detailed instructions for deportation of illegal foreign nationals including Rohingya.” In its affidavit filed before the Supreme Court last month, the Centre claimed that Rohingya refugees posed a “serious national security threat” and that their deportation was in the “larger interest” of the country. It also asked the court to “decline its interference” in the matter.

In the midst of the on-going battle between the Centre's will to throw Rohingya's out and the pending decision by the Supreme Court of India, an Islamic Cleric has issued an open threat to the Modi Govt. in New Delhi to dare throw the Rohingya out of India.

He has threatened to march all the way to New Delhi with millions of Muslims and over throw the Hindu Govt.

laughable rat he is , anyways , i am sure that it is time for momita bano alias mumta banarjee and gang to be decimated or removed from power either way . baki , i can easily take care of 12 out of 72 this topi wala rat is referring too . jai hind !